Ch 9 Flashcards
Section 1 - what is it?
The reasonable limits clause
- The Canadian charter of rights and freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrated justified in a free in democratic society
What does section 1 provide?
- Charter rights in Canada are not absolute, governments can violate our rights so long as those rights violations are deemed to be reasonable under section 1
- governments can do this where they think there is a more pressing value at stake, policy objective that is so important that warrants overriding rights
- the court determines reasonableness
How has the judiciary interpreted section 1?
- 1982 court had to interpret section 1
- in the first few years of the charter the court had no consistent approach to determining the reasonable limits
- R v. Oakes (1996): created a test for section 1 to determine whether rights violation is reasonable, applied by all courts when it is found a charter right has been violated
Oakes test
- Has a charter right been violated? (Claimant must prove)
- if no, the litigation ends and the legislation stands
- if yes, we move to step 2 - Is the rights infringement a reasonable limit? (Burden of proof shifts to government who must prove the rights violation is a reasonable limit under section 1)
- proportionality analysis (2 components)
i) legislative objective: is there a pressing and substantial legislative objective? (If yes, move on to second component of proportionality analysis, If no leg is struck down as unconstitutional) (specific way in which a gov is choosing to pursue a policy goal)
ii) reasonableness: are the means the government has chosen to implement its legislative objective reasonable and demonstrably justified in a free and democratic society?
a) rational connection
b) minimal impairment
c) proportionality
- if the government’s case meets the standards in all three parts of the reasonableness test, reasonableness has been established. The rights infringement is a reasonable limit on the right and therefore the legislation is saved under section 1 and continues to operate
Butler (1992) (SCC)
- involves Canada’s absentee laws in the criminal code
- involved a charter challenge to a criminal code provision that restricted the sale and distribution of obscene materials
- attacked as a violation of section to 2b
- Government said legislative objective was to protect women and children from sexual violence (policy objective)
- means: criminal code provision restricting the sale and distribution of obscene materials
- court fired rational connection but data was inconclusive
Chaoulli (2005) (SCC)
- involves two provincial statutes in Quebec prohibiting private health insurance - you cannot buy private health insurance that covers procedures that are already covered through the public system
- claimants argued the wait times were putting lives at risk this was a violation of section 7 right to life liberty and security of a person
- majority of the judges struck down on the prohibitions of purchasing private healthcare, found the Quebec government failed to provide a rational connection and did not provide sufficient evidence
Why is section 1 considered by many to be controversial?
- section 1 asks judges to balance rights against policy goals
- demands the courts to second-guess the wisdom of the legislature in the realm of policymaking not law
Section 33 - what is it ?
Notwithstanding clause
- allows parliament or provincial legislature to have its legislation operate even where a court has declared that the legislation violates the charter and cannot be saved under section 1
- section 33 allows legislation to continue to operate
- section 33 is invoked by legislature inserting a clause in a piece of legislation declaring that the legislation will operate notwithstanding the provisions of the charter (lasts for 5 years, infinite renewal)
- cannot be used retroactively (cannot attach section 33 to legislation that has already been passed)
Four things section 33 does not tell us
1) when it should be used
2) whether legislatures are required to explain why they are invoking section 33
3) timing - only after legislation is struck down?
4) whether courts can scrutinize a government use of section 33
How did charter analysts expect section 33 to be used?
- function as a corrective mechanism, if there is a judicial decision and elected officials think the judges got it wrong, then they would attach section 33 to legislation after decision from a court, used to allow legislatures to counteract a judicial decision
How has section 33 actually been used?
- used routinely in Quebec (33 times between 1982-1985), outside Quebec only used a few times, almost all cases of section 33 have been preemptive - legislative override is attached to legislation before there has been any constitutional challenge
- in 1982, Quebec passed bill 62 (omnibus override bill) to protest the process that had been used to patriate the constitution, this bill affected a blanket repeal of all Quebec legislation and reenacted all Quebec legislation with section 33 attached to it, also stated that all future laws passed would be protected by section 33, held omnibus bill was invalid (Quebec court of appeal held section 33 would have to be used much more specific ways)
Ford v. Quebec
- supreme Court of Canada came up with a very different view than the court of appeal in Quebec, said we are not touching this, not going to review how governments use section 33
- so long the form of section 33 is observed, it is a valid use of section 33
Why has section 33 rarely been used outside of Quebec?
- in English Canada, section 33 has a bad rap, characterized as a government mechanism to trample rights
- Ford decision: leg under challenge was a Quebec statute, bill 101 charter of the French language, protected French language, prohibited the use of English on commercial signs in the province of Quebec, this legislation was challenged for violating section to 2b and Bill 101 was struck down by the Supreme Court of Canada under section 2b
- premier of Quebec at the time followed the decision with a legislative sequel - bill 178 (inside/outside): used an inside/outside distinction to regulate the language on commercial signs, said outside signs have to be only in French, inside can be both so long as the French is dominant (attached section 33)
- section 33 has become virtually unuseable outside Quebec (political suicide)
Supporters of section 33 arguments
1) section 33 recognizes that judges are not perfect
2) it is truer to the principles of federalism, allows provinces to protect legislation that they feel is in the interest of their local communities
3) judges enjoy security of tenure, ensures governments are not stuck with a judiciary that was appointed by an opposing party
4) section 33 is truer to our system a parliamentary government, part of a unique Canadian province (Janet Hiebert argues that section 33 represents a new model of constitutionalism, that strikes a unique compromise between parliamentary supremacy and judicial supremacy, this new model allows judicial and political interpretations of rights to exist together, when we look at section 33 and one, we see a coordinate model of charter interpretation where both institutions share responsibilities for interpreting rights as equals)
Opponents of section 33
- tyranny of the majority: opponents 33 undermines the most fundamental purpose of the charter, which is to protect Canadians against rights violations, if it is so easy to violate rights that our rights are very frail, rights are supposed to protect vulnerable minorities from the majority
- no principal mechanism for using section 33, Jamie Cameron - there is nothing in the document that tells us when to use section 33, if there’s no principal way to use the override then we should abandon in section 33 (political compromise)
